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rejecting plaintiff's contention that fear for his life inhibited his grievance efforts
Summary of this case from Giovanni v. New JerseyOpinion
No. SA-03-CA-0033-RF
July 17, 2003
Before the Court are: (1) Texas Attorney General's (hereinafter "Amicus") Motion to Dismiss Pursuant to FED. R. CIV. P. 12(b)(6), filed on May 20, 2003; (2) Amicus's Motion to Dismiss for Failure to Exhaust Administrative Remedies, filed on May 20, 2003; (3) Amicus's Motion for Additional Information Regarding John Doe #1 — #5, filed on May 20, 2003; (4) Report and Recommendation of the United States Magistrate Judge, filed on June 12, 2003; and (5) Plaintiff's Objections and Motion to Reconsider Magistrate Judge's Recommendation, filed on June 20, 2003. The Court's disposition of these matters is discussed below.
STANDARD OF REVIEW
If no objections are timely filed to a magistrate judge's Report and Recommendation, the Court reviews the report for findings of fact or conclusions of law that are either clearly erroneous or contrary to law. When either party, however, makes specific objections within ten days of receipt of the magistrate judge's Report and Recommendation, the Court reviews de novo the portions of the report to which a party specifically objected. In this case, Plaintiff timely filed his Objections and Motion to Reconsider Magistrate Judge's Recommendation on June 20, 2003. Since the appropriate procedure for challenging a magistrate judge's recommendation is to file specific objections, rather than a motion for reconsideration, the Court construes Plaintiff's entire filing as an objection to the recommendation. Thus, Plaintiff's Motion to Reconsider Magistrate Judge's Recommendation is DISMISSED AS MOOT. However, the Court will review de novo the portions of the Report and Recommendation to which Plaintiff objects.BACKGROUND
Plaintiff, a prisoner proceeding pro se, initiated his § 1983 claim on January 22, 2003, based on events that occurred during his holding at the Connally and Telford Units of the Texas Department of Criminal Justice ("TDCJ"). Plaintiff alleges that Defendant Warden Hudson of the Telford Unit failed to take action when Plaintiff informed Defendant that he believed his life was in danger. Plaintiff alleges that Defendant Hudson's failure to act resulted in assaults on Plaintiff on October 10, 2002 and November 21, 2002.
Plaintiff was transferred from the Telford Unit to the Connally Unit on December 11, 2002.
See Pl's Compl. at 3 ¶ IV.B ("Defendant #1").
Plaintiff alleges that Defendant Director Cockrell showed "deliberate indifference to [the] unconstitutional policy[, which] resulted in Plaintiff['s] being placed in a[n] unreasonably dangerous situation."
Id. at 3 ¶ IV.B ("Defendant #2").
Plaintiff alleges that Defendants John Doe #1, 2, 4 and 5 showed deliberate indifference to known threats which resulted in injuries to Plaintiff. Plaintiff alleges that Defendant John Doe #3 showed deliberate indifference to Plaintiff's medical needs and emergency medical claims. Finally, Plaintiff alleges that Defendant Warden Marton of the Connally Unit violated Plaintiff's constitutional rights in dealing with Plaintiff's safety concerns.
Id. at 3 ¶ IV.B ("Defendant #3-5"; "Defendant #6").
Id. at 3 ¶ IV.B ("Defendant #7").
Id. at A-1.
On March 13, 2003, United States Magistrate Judge Pamela A. Mathy entered an Order directing service on the Texas Attorney General's Office. On May 20, 2003, the Attorney General's Office filed the three Amicus Motions at issue. In the first Motion, Amicus seeks to dismiss Plaintiff's claims for failure to exhaust administrative grievance remedies. In the second Motion, Amicus seeks to dismiss all claims for money damages and injunctive relief against Defendants Cockrell and Marton, who are both being sued only in their individual capacities. In the third Motion, Amicus requests that this Court order Plaintiff to provide additional identifying information regarding John Doe #1 — #5.
On May 29, 2003, Plaintiff responded to Amicus's motions. In his response, Plaintiff first claims that he does not seek money damages from Defendants Cockrell and Marton and therefore does not object to dismissal of those claims. He states that he seeks only injunctive relief against these Defendants. With regard to exhaustion, Plaintiff argues that he did file a Step 1 grievance in this matter, which is attached to his original Complaint. Plaintiff asserts that the Step 1 grievance was never answered. Finally, Plaintiff filed a separate Response to Defendant's Request for Additional Information, in which he provides additional identifying information regarding John Doe #1 — #5.
Pl.'s Reply to Def.'s Mots, to Dismiss at 2 (May 29, 2003).
Id. at 4.
On June 12, 2003, the Magistrate Judge entered her Report and Recommendation on Amicus's Motions to Dismiss and Motion for Additional Information. The Magistrate Judge attached significant weight to Amicus's contention that Plaintiff's Step 1 grievance "has not been properly submitted or processed by TDCJ." The Magistrate Judge found that Plaintiff had not exhausted his remedies and therefore recommended dismissal of his Complaint without prejudice.
With regard to the claims against Defendants Cockrell and Marton, the Magistrate Judge construed Amicus's Motion as only requesting dismissal of the claims for money damages. Since Plaintiff did not object to such dismissal, the Magistrate Judge recommended granting the Motion. On these bases, the Magistrate Judge determined that the Motion for Additional Information should be denied as moot.
Plaintiff filed his Objections to the Report and Recommendation on June 20, 2003. Plaintiff again objected to the Magistrate Judge's finding that Plaintiff had failed to exhaust his administrative remedies. Plaintiff insisted that he had, in fact, filed the grievance, but that no response was ever received. Plaintiff eventually concluded that no response was forthcoming. For this reason, Plaintiff asserts, he was unable to appeal any decision in a Step 2 grievance and therefore commenced suit in this Court.
DISCUSSION
I. Exhaustion of Remedies
The PLRA provides that "[n]o action shall be brought with respect to prison conditions under section 1983 . . . until such administrative remedies as are available are exhausted." The Supreme Court has held that, even where a prisoner is seeking money damages and the prison administrative process provides no monetary relief, he must still complete the administrative process.
ld.
Booth v, Churner, 532 U.S. 731, 734, 121 S.Ct. 1819, 1821 (2001); see also Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001).
Section 1997e "does not impose exhaustion of administrative remedies as a prerequisite to jurisdiction." "Rather, the amended statute imposes a requirement, rather like a statute of limitations, that may be subject to certain defenses such as waiver, estoppel, or equitable tolling." The Second, Third, Seventh, Ninth and D.C. Circuits have held that exhaustion is an affirmative defense, with the burden resting on Defendant to challenge exhaustion of administrative remedies. The Court interprets the Fifth Circuit's opinion in Wendell v. Asher as signaling its agreement with the majority position adopted by these circuits. As such, the burden is on Defendant to show a failure to exhaust. The issue before the Court, therefore, is whether Defendant has met this burden.
Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir. 1998).
Wendell v. Asher, 162 F.3d 887, 890 (5th Cir. 1998).
See, e.g., Wyatl v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003); Ray v. Kertes, 285 F.3d 287, 293 (3d Cir. 2002); Jackson v. District of Columbia, 254 F.3d 262, 267 (D.C. Cir. 2001); Massey v. Wheeler, 221 F.3d 1030, 1034 (7th Cir. 2000); Snider v. Melindez, 199 F.3d 108, 111-12 (2d Cir. 1999).
162 F.3d 887, 890 (5th Cir. 1998).
The Magistrate Judge in this case referred to the evidence filed by Amicus in support of its contention that Plaintiff never filed the purported Step 1 grievance in this case. Amicus attached a copy of what it stated were all grievances filed by Plaintiff between March 2002 and April 2003. This record is substantial, consisting of 56 pages of grievances, each grievance generally constituting two pages. Additionally, Amicus attaches the affidavit of Susan Schumacher, the Assistant Administrator of Offender Grievance for the TDCJ, who attests that the documents represent all of the grievance records on file for Plaintiff. She adds, however, that TDCJ records "indicate that Offender Luke Teixeira did file a Step 1 grievance #2003059853[;] however the file copy of this grievance has been misplaced." She further notes that "Offender Luke Teixeira had a Step 1 grievance #2002229754 relating to a communication issue was [sic] returned because of submission in excess of 1 every 7 days."
See Amicus Curiae Mot. to Dismiss for Failure to Exhaust Administrative Remedies at 2, Ex. A.
Id., Ex. A.
Id.
Id.
Although the Magistrate Judge found this evidence sufficient to satisfy Defendants' burden of showing failure to exhaust remedies, this Court disagrees with that finding. As noted, Plaintiff attached a copy of the Step 1 grievance to his Complaint, which indicates that the grievance was filed on or about October 22, 2002. Moreover, the affidavit of Ms. Schumacher acknowledged that a file copy of one of Plaintiff's grievances had been misplaced. Amicus argued in its Motion to Dismiss that "[i]t is apparent by a review of Teixeira's grievance records that he understands and has used the grievance process prior to and after the alleged incidents. . . ," Rather than suggest that Plaintiff did not file a grievance as Amiens contends, however, this statement seems to undermine the contention that the grievance in dispute was not "properly submitted" by Plaintiff. The attached copy of the grievance by Plaintiff, coupled with Ms. Schumacher's concession that the file of Plaintiff's grievance records is incomplete, precludes a finding that Plaintiff failed to file a Step 1 grievance in this case.
Pl.'s Compl., Ex. 3.
Amicus Curiae Mot. to Dismiss for Failure to Exhaust Administrative Remedies at 4.
Id.
The Fifth Circuit has held that "[a] prisoner's administrative remedies are deemed exhausted when a valid grievance has been filed and the state's time for responding thereto has expired." The TDCJ grievance procedure provides that "[t]he Step 1 process may take up to 40 days from the date the unit grievance office receives the Step 1 form." Thus, presuming Plaintiff filed his grievance on or about October 22, 2002, his administrative remedies were effectively exhausted by approximately December 1, 2002. Plaintiff did not initiate the present suit until January 22, 2003. Thus, the Court concludes that Plaintiff's claims are not procedurally barred for failure to file a grievance.
TDCJ Offender Handbook at 58 U VLB.
Nevertheless, the Court must determine the scope of the claims alleged in the administrative grievance. Plaintiff's Step 1 grievance states only that he warned Warden Hudson of his apprehension of physical harm, but that Warden Hudson failed adequately to address the problem. As his requested relief, Plaintiff stated that he "would like to be removed from the dangerous situation and be placed somewhere safe for someone in [his] situation." Plaintiff makes no statements, complaints, or allegations with regard to any other Defendant. Thus, even if Plaintiff properly filed his Step 1 grievance, he has only exhausted administrative remedies with regard to Defendants Cockrell and Hudson. Plaintiff's claims against all other Defendants, therefore, should be DISMISSED WITHOUT PREJUDICE.
Pl.'s Compl., Ex. 3.
Id.
Furthermore, the Court notes that the allegations contained in Plaintiff's Complaint extend beyond October 2002-the time he filed his grievance-to include incidents in November and December 2002. Since such allegations exceed the scope of Plaintiff's administrative grievance, they do not comply with the exhaustion requirement of 42 U.S.C. § 1997e(a) and will therefore be DISMISSED WITHOUT PREJUDICE.
The Court rejects any suggestion by Plaintiff that "fear for his life and continuous disregard by TDCJ-ID of his attempts to get help" justify a waiver of the exhaustion requirement. First, "exhaustion in cases covered by § 1997e(a) is now mandatory," and Plaintiff has not established any exception to this requirement. Second, there is nothing in the record to suggest that any danger to Plaintiff continues to exist in his new location. Finally, Plaintiff's averments that fear and danger are inhibiting his grievance efforts are contradicted by his maintenance of this lawsuit and his filing of grievances in other matters. Accordingly, Plaintiff's claims against all Defendants except Cockrell and Hudson are DISMISSED WITHOUT PREJUDICE. The Court now turns to the claims against the remaining Defendants.
Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 988 (2002).
Amicus Curiae Mot. to Dismiss for Failure to Exhaust Administrative Remedies, Ex. A.
II. Sufficiency of Claims Against Defendants Cockrell and Hudson
Plaintiff has conceded that he is only suing Defendant Cockrell in her official capacity. As a result, he does not seek money damages from Cockrell, but only injunctive relief. Accordingly, any claims for money damages against Defendant Cockrell should be DISMISSED WITHOUT PREJUDICE.
Amicus argues that any claim for injunctive relief against Defendant Cockrell is proscribed by Eleventh Amendment immunity. However, the Fifth Circuit has rejected this position, citing an exception to Eleventh Amendment immunity when a plaintiff's suit alleging a violation of federal law is "brought against individual persons in their official capacities as agents of the state, and the relief sought . . . [is] declaratory or injunctive in nature and prospective in effect."
Amicus Curiae Mot. to Dismiss Pursuant to FED. R. CIV. P. 12(b)(6) at 3.
Aguilar v. Texas Dept. of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1998) (citing Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441 (1908)).
Plaintiff's claims against Cockrell would appear to satisfy this standard. Nevertheless, Plaintiff's injunctive claims have been rendered moot since the time of the alleged incident. Plaintiff states in his Complaint that he was transferred from the Telford Unit to the Connally Unit on December 11, 2002. A subsequent grievance filed by Plaintiff acknowledges that this transfer was effected "for safety concerns." Although Plaintiff continues to allege that "the transfer was not sufficient to offer sufficient protection," such allegations exceed the scope of the administrative grievance filed in this case, as noted above. Plaintiff initially requested to "be removed from the dangerous situation" he faced while in the Telford Unit. This relief has been granted through his transfer to the Connally Unit. If Plaintiff wishes to challenge his conditions at his new location, he must initiate a separate administrative grievance before filing suit. The initial grievance does not serve as a continuing and general objection to Plaintiff's conditions after relief has been afforded. Since the injunctive relief sought against Cockrell is now moot, therefore, the claims against Defendant Cockrell should be DISMISSED WITHOUT PREJUDICE.
Pl.'s Compl. at A-4.
Amicus Curiae Mot. to Dismiss for Failure to Exhaust Administrative Remedies, Ex. A at 23.
Pl.'s Compl. atA-4.
Pl.'s Compl., Ex. 3.
Defendant Hudson, by contrast, is being sued in both his individual and official capacity. The Fifth Circuit has clearly held that "the Eleventh Amendment bars recovering § 1983 money damages from TDCJ officers in their official capacity." Thus, claims for money damages against Hudson in his official capacity must be DISMISSED WITHOUT PREJUDICE. Additionally, since Plaintiff has been transferred out of the Telford Unit-where Hudson serves as Warden-Plaintiff's claims for injunctive relief against Hudson in his individual and official capacity should be DISMISSED WITHOUT PREJUDICE.
36Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2002) (citing Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998) and Aguilar, 160 F.3d at 1054).
This leaves only Plaintiff's claims for money damages against Defendant Hudson in his individual capacity. The Court finds that Plaintiff's allegations of acts and omissions by Defendant Hudson sufficiently state a claim of a constitutional violation. Accordingly, Amicus's Motion to Dismiss should be DENIED to the extent it applies to claims for money damages against Defendant Hudson in his individual capacity. The Court reiterates, however, that such claims may only be based on incidents occurring prior to October 22, 2002, the date on which Plaintiff purportedly filed his Step 1 grievance. They may not include allegations arising after that time (which could not have been encompassed within the scope of that grievance), including the alleged November 21, 2002 assault.
III. Motion for Additional Information
Since the Court concludes that all claims against Defendants John Doe #1 — #5 should be DISMISSED, Amicus's Motion for Additional Information Regarding John Doe #1 — #5 should also be DISMISSED AS MOOT.
CONCLUSION
The Court disagrees with the recommendation of the Magistrate Judge that Defendants have adequately established that Plaintiff never filed a Step 1 grievance in this case. Nevertheless, the Court finds that Plaintiff's Complaint should only be preserved with regard to claims properly preserved by the scope of that grievance. The Court agrees with the Magistrate Judge to the extent she recommends dismissal of claims of money damages against Defendants Cockrell and Marton in their official capacities. The Court also agrees with the Magistrate Judge to the extent she recommends that the Attorney General's Motion for Additional Information should be dismissed as moot.
It is therefore ORDERED the Report and Recommendation of the United States Magistrate Judge is ADOPTED IN PART and REJECTED IN PART.
It is ORDERED that the Attorney General's Motion to Dismiss Pursuant to FED. R. CIV. P. 12(b)(6) is GRANTED.
It is ORDERED that the Attorney General's Motion to Dismiss for Failure to Exhaust Administrative Remedies is GRANTED IN PART and DENIED IN PART.
It is ORDERED that ALL CLAIMS against Defendants Janie Cockrell, Jeffrey Marton, John Doe #1, John Doe #2, John Doe #3, John Doe #4, and John Doe #5 are DISMISSED WITHOUT PREJUDICE.
It is ORDERED that ALL CLAIMS against Defendant Hudson in his OFFICIAL CAPACITY are DISMISSED WITHOUT PREJUDICE.
It is ORDERED that Plaintiff's claims for INJUNCTIVE RELIEF against Defendant Hudson in his INDIVIDUAL CAPACITY are DISMISSED WITHOUT PREJUDICE.
It is ORDERED that the only remaining claims in this case are Plaintiff's claims against Defendant Hudson for MONEY DAMAGES in his INDIVIDUAL CAPACITY, subject to the limitations specified in the last paragraph of Section II of the Discussion of this Order.
It is ORDERED that the Attorney General's Motion for Additional Information Regarding John Doe #1 — #5 is DISMISSED AS MOOT.
It is ORDERED that Plaintiff's Motion to Reconsider Magistrate Judge's Recommendation is DISMISSED AS MOOT.